Court Rejects Media’s Bid for Polling Site Access

PHILADELPHIA (CN) – Journalists have no greater rights under the First Amendment than everyone else, the 3rd Circuit ruled, upholding a law that restricts media access to polling sites. The decision sounds the death knell in the challenge to Section 3060(d) of Pennsylvania Laws, which bars reporters and photographers from polling places. Pittsburgh Post-Gazette had filed suit over the law after winning a November 2008 injunction from an Allegheny court that allowed it to photograph public polling place activities or other activities into which they were otherwise lawfully admitted. The injunction mandated, however, that “no photography shall be taken from inside the polling place or within ten feet of the entrance of the polling place.” In September 2012, representatives for Pennsylvania, the Allegheny County Elections Division and the Allegheny County Board of Elections offered the Post-Gazette a consent order that gave reporters restricted access to enter Allegheny County polling places to record the sign-in process. Both the Post-Gazette and the District Court objected and refused to enter the order, with the court noting that Allegheny officials could not “use a consent decree to enforce ‘terms which would exceed their authority and supplant state law.” In dismissing the complaint this past October, U.S. District Judge Nora Fischer found that the First and Fourth Amendments do not apply “because 3060(d) ‘does not target or single out’ newspaper reporters for disfavored treatment.” A three-judge panel of the 3rd Circuit affirmed Tuesday. “While PG never explicitly claims that the media would have greater First Amendment rights than the general public, appellant’s arguments hinge on one particular principle: that the framers ‘thoughtfully and deliberately selected [the press] to improve our society and keep it free,'” Judge Joseph Greenaway wrote for the panel. The law at issue, 3060(d), “applies to an individual’s physical location and not his speech, therefore obviating the need to determine wither a polling place was a public forum,” he added. As such, the court approved the law as a “content-neutral law of general application seeking to protect an individual’s right to cast a ballot in an election free from the taint of intimidation and fraud.” The Post-Gazette “failed to establish that ‘a single election official ha[d] discriminated against reporters,” according to the 52-page ruling. Greenaway also noted that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” “While the First Amendment does protect appellant’s right of access to gather news, that right does not extend to all information,” he added. Greenaway differentiated between the right of access and the right to free speech. “Thus, where the First Amendment does not protect a right of access to a particular proceeding, this fact has no bearing on any constitutional protections for expressive speech at the same,” he wrote. The Post-Gazette also failed to show “that a right of access to polling places exists because information about voters is publicly available,” according to the ruling. “The access appellant seeks is not to this information; it is to the actual process occurring within the polling place prior to casting a vote,” Greenaway wrote. “This crucial distinction also ensures that our decision does not pertain to activities such as exit-polling.” Finding that the First Amendment does not offer a protected “right of access to a polling place for news-gathering purposes, we find that appellant has failed to state a claim,” the ruling states. The panel also found the District Court “did not err in refusing to enter a consent decree that would violate state law.”